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Senate delivers potentially fatal blow to 'don't ask, don't tell' repeal efforts

By Ed O'Keefe and Paul Kane
Washington Post Staff Writers
Friday, December 10, 2010; 12:00 AM

The Senate on Thursday dealt another punch - this one potentially fatal - to the legislative effort to end the military's "don't ask, don't tell" policy. The result infuriated gay rights groups and thwarted a months-long push by President Obama and the Democratic leadership to force a vote on the issue.

The failed procedural vote on a defense spending bill, falling three votes short of the 60 needed, left opponents of the policy scrambling for new avenues to overturn the 17-year-old ban on gays serving openly in the military, and it raised the possibility that federal courts ultimately will step in.

Two key supporters of repeal - Sens. Joseph I. Lieberman (I-Conn.) and Susan Collins (R-Maine) - said they plan to introduce a separate piece of legislation, but with time winding down on the congressional calendar and a more conservative tilt coming to Capitol Hill next year, passage seems unlikely.

Obama, who spent time in recent days phoning lawmakers about the ban, urged senators after their 57 to 40 vote to reconsider the defense bill before the end of the lame-duck session.

"Despite having the bipartisan support of a clear majority of senators, a minority of senators are standing in the way of the funding upon which our troops, veterans and military families depend," the president said in a statement. "This annual bill has been enacted each of the past 48 years, and our armed forces deserve nothing less this year."

The Senate vote Thursday afternoon was on a procedural question: whether to move forward with debate on a far-reaching policy bill for the Pentagon that included two pages - out of more than 850 - spelling out the end of the ban. Voting yes were 54 Democrats, two independents and Collins.

"We've tried every possible way to do this," Senate Majority Leader Harry M. Reid (D-Nev.) said in an speech laced with exasperation before the vote. Reid, focused on time running out for the session, frustrated Collins and others by calling the vote even though he knew it might result in defeat.

Every other Republican and one Democrat, newly elected Sen. Joe Manchin III (W. Va.), held firm on a vow to block any legislation that does not address tax cuts or government spending. Three senators serving in the military - Scott Brown (R-Mass.), Lindsey O. Graham (R-S.C.) and Mark Kirk (R-Ill.) - voted against moving forward.

The Defense Department had no immediate comment on Thursday's vote. Defense Secretary Robert M. Gates, Joint Chiefs of Staff Chairman Mike Mullen and other senior military leaders pressed senators last week to overturn the ban and to allow the Pentagon to gradually phase it out. Gates and Mullen warned of potential chaos in the ranks if federal courts ordered an immediate end to the policy.

The final drama came during Thursday's roll-call vote, ending more than a week of negotiations with Reid, Collins and Lieberman. Those talks collapsed early Thursday but Collins continued trying during the vote to negotiate for more time to consider the legislation.

Fifty-seven members of the Democratic caucus - including the two independents - were willing to support the legislation, and two Republicans were ready to join Collins: Brown and Sen. Lisa Murkowski (Alaska). However, the trio was demanding four days of debate and the ability to offer 10 amendments to the Pentagon bill, with Democrats allowed to offer five.

When Reid said no, Collins erupted, angrily waving her arms about the process. She huddled with Lieberman and Senate Armed Services Chairman Carl M. Levin (D-Mich.), reading through legislative language on the floor. She opposed the process Reid had laid out, so Brown and Murkowski voted no. Collins waited until it was clear that the legislation had failed and then voted with Democrats to proceed on the measure.

"There was a clear path forward to complete action on this important bill," she said at a news conference afterward, blasting Reid for holding the vote prematurely.

Graham called Thursday's vote "a political exercise that I think is unworthy of the Senate. You're not going to get our cooperation when you take these bills and you bring them up with no real certainty."

Graham and Sen. John McCain (R-Ariz.), who opposed ending the ban this year, blocked a similar vote to proceed on the bill in September.

McCain said Thursday that he still wants to hold more hearings on the issue before a final vote.

Thursday's defeat ended more than two years of coordinated efforts by dozens of gay rights and liberal groups to ensure Obama made good on a 2008 campaign pledge to end the ban through legislation or executive action.

With congressional options dwindling, the president could order the Justice Department to stop appealing federal court cases challenging the constitutionality of the law or use his powers as commander in chief to issue a stop-loss order halting military discharges and the removal of any gay troops in violation of the ban. His statement Thursday maintained a preference for legislative action.

"I think the president strongly believes that one of two things is going to happen: Either Congress is going to solve this legislatively, or the courts are going to decide this," White House press secretary Robert Gibbs said Thursday before the vote. "And the policy is going to come to an end."

Executive action by Obama is "imperative in order for him to fulfill his State of the Union promise," said Joe Solomonese, president of the Human Rights Campaign, a gay rights organization with close ties to the White House and congressional Democrats. "The only measure of success is an end to the discharges, and anything less is unacceptable."

"History will hold these senators accountable and so will many of their constituents," said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, another group pushing for repeal.

Democrats are trying to pass a $1 trillion bipartisan tax-cut extension package, along with a $1.1 trillion stopgap funding bill for the government. In addition, the White House and Democrats have privately thought that there is only enough time for one other major policy fight, pitting repeal of "don't ask, don't tell" against passage of the New START pact. White House aides acknowledge privately that the treaty held more importance to Obama because of its global ramifications for nuclear disarmament.

The likelihood of the broader 2011 defense measure - which has in the past been regularly approved with large bipartisan support - passing during the lame-duck session is also increasingly doubtful. The bill would give military service members a 1.4 percent pay increase, allot $11.6 billion to train the Afghan army and police, and fund several aircraft engine and weapons systems.

Levin, the bill's lead sponsor, said he would explore his options, but "given the limited amount of time left in this Congress, that may be too high a mountain to climb," he said.

ed.okeefe@washingtonpost.com kanep@washpost.com

Staff writer Philip Rucker contributed to this report.

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